Mason v. Commonwealth

• Decision Date: 05 May 2016
• Docket Number: Record No. 150372.
• Citation: 786 S.E.2d 148,291 Va. 362
• Parties: Loren MASON v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

291 Va. 362

786 S.E.2d 148

Loren MASON

v.COMMONWEALTH of Virginia.

Record No. 150372.

Supreme Court of Virginia.

May 5, 2016.

Paul S. Roskin (Vergara & Associates, on briefs), for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: LEMONS, C.J., GOODWYN, MIMS, McCLANAHAN, and POWELL, JJ., and RUSSELL and MILLETTE, S.JJ. Opinion by Senior Justice, CHARLES S. RUSSELL.

This appeal arises from a motion to suppress evidence obtained by police officers following the “Terry stop” of an automobile.

FACTS AND PROCEEDINGS

The material facts are undisputed. At 2:30 p.m. on March 3, 2012, Officer Willie Richards of the Waverly Police Department was operating stationary radar on the side of Route 460 in the Town of Waverly, Sussex County. He was accompanied by another officer named Parker. Richards was watching for traffic speeding down a hill. He observed a green sedan that passed him. It attracted his attention only because he observed a dangling object hanging below its rear-view mirror. He followed it in his cruiser and brought it to a stop. He thought the dangling object might be in violation of the law. Code § 46.2–1054 provides, in pertinent part:

It shall be unlawful for any person to drive a motor vehicle on a highway in the Commonwealth with any object or objects, other than a rear view mirror, sun visor, or other equipment of the motor vehicle approved by the Superintendent, suspended from any part of the motor vehicle in such a manner as to obstruct the driver's clear view of the highway through the windshield, the front side windows, or the rear window, or to alter a passenger-carrying vehicle in such a manner as to obstruct the driver's view through the windshield.

There were two occupants of the green sedan. The driver was Tony Jarrett and the appellant here, Loren Mason, was a front-seat passenger. The dangling object was an opaque plastic parking pass for a nearby military facility, approximately 3? by 5? in size, suspended from the rear-view mirror mounting. Richards asked Jarrett to step out of the car. Jarrett complied and walked to the rear of the car. Richards testified that he intended to charge Jarrett with a seat-belt violation as well as a violation of Code § 46.2–1054 and so advised Jarrett. He asked Jarrett whether he had any weapons on his person and Jarrett said no. He then asked Jarrett if he would consent to a “ pat-down” search for weapons and Jarrett gave his consent. The search revealed no weapons but led to the discovery of a bag of marijuana in Jarrett's pocket. Richards detained him for possession of marijuana as well as the two traffic infractions, and read him his Miranda rights.

Meanwhile, Officer Parker asked Mason to step out of the car. He then conducted a pat-down search of Mason, which revealed nothing. Richards testified that Mason would “absolutely” have been free to leave the scene at that point if he had so desired. Richards detected a strong odor of marijuana in the car, searched its interior and found a black backpack in the middle of the rear seat. Neither Jarrett nor Mason admitted ownership of the backpack. Richards opened the backpack and found a large number of individually-wrapped bags of marijuana, a bag containing “Ecstasy” pills, cocaine residue, a box of sandwich bags and several letters that had been written to Mason. Richards then arrested Mason, read him his Miranda rights, and searched him incident to the arrest. The search revealed a cell phone and $3,381 in cash on Mason's person.

Mason was indicted, tried and convicted in the Circuit Court of Sussex County of three felony drug offenses arising from his arrest. He made a pre-trial motion to suppress the evidence obtained as a result of the traffic stop, contending that it was an unconstitutional infringement of his Fourth Amendment rights. The circuit court denied his motion to suppress.

Mason appealed to the Court of Appeals, assigning error only to the circuit court's denial of his motion to suppress. The Court of Appeals granted the appeal which was decided by a divided three-judge panel. In a published opinion, Mason v. Commonwealth, 63 Va.App. 587, 760 S.E.2d 831 (2014), the majority ruled that the “facts and circumstances available to the officer at the time of the stop did not support a reasonable suspicion that the driver was violating or about to violate the law,” id. at 605, 760 S.E.2d at 840, ordering reversal and remand to the circuit court for a new trial. Id. Sitting en banc, the full court, closely divided, reversed the panel decision and affirmed the judgment of the circuit court. Mason v. Commonwealth, 64 Va.App. 292, 308–09, 767 S.E.2d 726, 735 (2015). We awarded Mason an appeal.

ANALYSIS

When challenging the denial of a motion to suppress evidence on appeal, the defendant bears the burden of establishing that reversible error occurred. Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008). When the defendant contends that the evidence sought to be suppressed was obtained in violation of his Fourth Amendment rights, the standard of review on appeal is de novo. Id. In performing this review, we consider the evidence in the light most favorable to the Commonwealth and accord the Commonwealth the benefit of all inferences fairly deducible from the evidence. Id.

In Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer may, without violating the Fourth Amendment, make a brief investigatory stop of a person when the officer has a reasonable suspicion, based on objective facts, that criminal activity may be afoot. Such brief investigatory detentions have become known as “Terry stops” and have spawned many appeals, especially in cases where the stop resulted in the discovery of evidence of crimes far different from that which had motivated the officer to make the stop. As we explained in Sidney v. Commonwealth, 280 Va. 517, 522, 702 S.E.2d 124, 127–28 (2010), “[w]hile limited in its purpose and length, an investigative stop ... such as the traffic stop in this case, constitutes a seizure within the meaning of the Fourth Amendment.” See also, e.g., Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ; Harris v. Commonwealth, 276 Va. 689, 694, 668 S.E.2d 141, 144 (2008) ; Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). As the United States Supreme Court has stated, “[a] traffic stop for a suspected violation of law is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.” Heien v. North Carolina, 574 U.S. ––––, ––––, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014). “[T]o justify this type of seizure, officers need only ‘reasonable suspicion’—that is, ‘a particularized and objective basis for suspecting the particular person stopped’ of breaking the law.” Id. (quoting Prado Navarette v. California, 572 U.S. ––––, ––––, 134 S.Ct. 1683, 1688, 188 L.Ed.2d 680 (2014) ). The Court has said that reasonable suspicion to justify an investigative stop of a vehicle must be based upon specific and articulable facts of criminal activity. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ; United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ; Sidney, 280 Va. at 522, 702 S.E.2d at 127 ; Harris, 276 Va. at 694, 668 S.E.2d at 144 ; Jackson, 267 Va. at 672, 594 S.E.2d at 598.

In making reasonable-suspicion determinations, reviewing courts must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing. Arvizu, 534 U.S. at 273, 122 S.Ct. 744. In addition, case law has resulted in the formulation of rules that inform our inquiry here. First, the facts and circumstances on which the officer relies must have been available to him at the moment of the stop, not discovered thereafter. See Terry, 392 U.S. at 21–22, 88 S.Ct. 1868. Second, the officer's subjective thoughts are irrelevant. Robinson v. Commonwealth, 273 Va. 26, 37, 639 S.E.2d 217, 223 (2007) (citing Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 1948, 164 L.Ed.2d 650 (2006) ). The Fourth Amendment imposes a standard of objective reasonableness. See Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). The test is not what the officer thought, but rather whether the facts and circumstances apparent to him at the time of the stop were such as to create in the mind of a reasonable officer in the same position a suspicion that a violation of the law was occurring or was about to occur. Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).

For that reason, if the officer making the stop is mistaken as to the applicable law, see Heien, 135 S.Ct. at 539, or has made an error of fact in deciding to make the stop, see id., his mistake is irrelevant if the facts and circumstances at the time of the stop would have been sufficient to create in the mind of a reasonable officer in the same position a suspicion that a violation of the law was occurring or was about to occur.

The standard of objective reasonableness rules out any conclusion reached by an officer based entirely or even in part on an ulterior motive such as personal animus against the subject of the stop or a bias against him based on his appearance, or any subjective factor unrelated to evidence of a violation of the law. Here, the record contains no indication that Richards had any such motive, and Mason makes no such contention.

Third, the objective facts and circumstances available to the officer must be such as to lead a reasonable officer to an articulable suspicion, a conclusion that can be expressed in words sufficient to persuade a reasonable listener to come to a like conclusion. That standard requires far more than...